Citation Nr: 0020434
Decision Date: 08/03/00 Archive Date: 08/09/00
DOCKET NO. 98-13 268 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased evaluation for the residuals of
an injury to Muscle Group XIII, the left thigh, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. L. Bunch, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1943 to January
1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1998 rating decision of the
Jackson, Mississippi, Regional Office (RO) of the Department
of Veterans Affairs (VA), which confirmed a 10 percent rating
evaluation for the veteran's service connected residuals of a
Group XIII muscle injury of the left thigh. The veteran
filed a timely notice of disagreement and perfected a
substantive appeal.
In August 1999 the Board remanded this issue of entitlement
to an increased evaluation for service connection residuals
of a Group XIII muscle injury to the left thigh, currently
evaluated as 10 percent disabling to address the issues of
service connection for arthritis of the left knee and a
neurological disability on a secondary basis. Additional
examinations were requested in order to address these issues.
In a March 2000 rating decision, the RO granted service
connection for the left lower extremity claimed as a
neurological disability of the left leg and assigned non-
compensable evaluation. The RO also denied entitlement to
service connection for arthritis of the left knee. The
veteran was notified of that decision and of his appellate
rights. The veteran has not appealed that determination.
FINDINGS OF FACT
1. A well-grounded claim has been presented, and all
evidence necessary for an equitable adjudication has been
obtained.
2. The residuals of an injury to Muscle Group XIII, the left
thigh, are productive of moderate impairment.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 10 percent
for residuals of a Group XIII muscle injury to the left thigh
are not met. 38 U.S.C.A. § 1155, 5io7 (West 1991); 38 C.F.R.
Part 4, Diagnostic Code 5313 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. FACTUAL BACKGROUND
The service medical records reflect that the veteran was
hospitalized in October 1944 after he accidentally caught his
left leg and thumb in a trailer hook of a moving vehicle. An
examination of the back of the thigh appeared to show that
the hamstring muscle was punctured. The following day the
wounds of the posterior of the left thigh were debrided and
sutured. In November 1944 the wounds were listed as healed.
He was discharged in November 1944 with a pertinent diagnosis
of wound, lacerated, severe, posterior aspect, mid thigh.
A VA examination was conducted in March 1952. At the time of
the examination the veteran stated that his leg felt numb and
aches in that region if he was too active. Examination
showed that over the posterolateral and medial aspect of the
middle third of the left thigh was a circular scar over the
lateral portion which measured 1 and 1/4 inches in diameter.
It was well healed, non-tender, and non-adherent to the
underlying tissues. There was a very slight deficiency in
the underlying fascia but there was no herniation of the
muscle. Just medial to this over the posteromedial aspect in
the same portion of the thigh, was another scar measuring 3
in length and 1 inches in width at its widest portion. It
was also well healed, non-tender, and non-adherent to
underlying tissue. There was some deficiency of the
underlying fascia, but there was no bulging of the muscles or
herniation of the muscles. There was no evident weakness of
this leg and no sensory changes could be elicited and
reflexes were present and normal. The diagnoses included
residuals of an old injury, left thigh, manifested by scars
and subjective complaints.
In April 1952 the RO granted entitlement to service
connection for muscle injury, moderate to Group XIII,
residuals of injury left high, and assigned a 10 percent
evaluation.
The veteran has been examined and treated intermittently at
private and VA facilities from 1991 to 1998 for various
disorders, to include the left thigh.
A private medical record dated in March 1998 shows that the
veteran complained of a persistent tingling and numbness in
the back of his leg. The physician commented that this was
where the veteran had been injured previously. The veteran
had some arthralgias in his low back. The numbness seemed to
come and go similar to when a foot goes to sleep. The
impressions included non-specific trauma with neuropathy to
leg, old, and allergic rhino sinusitis with postnasal drip.
A VA examination was conducted in May 1998. At that time the
veteran reported that in the 1940's while standing in-between
a truck and trailer he was injured. Some portion of the
trailer was rod-like and actually rammed into his thigh,
piercing the back of his thigh. The veteran stated that he
remembered them cleaning and sewing it up. He healed quickly
and did not really have many problems with it until the early
1950's when it started to hurt quite a bit. The veteran
stated that the back of his leg constantly throbbed and
ached.
The examination showed that the veteran reported that his
left leg constantly throbbed and ached. It ached down to the
back of his knee. He had paresthesias in an approximately 5
inch squared area over the upper popliteal space immediately
distal to the injury. The veteran stated that prolonged
standing made the pain worse. The veteran took Aleve and
sometimes alternates that with an arthritis medicine of an
unknown type. The veteran had some functional impairment
walking. There was no limitation of range of motion.
The muscles injured was Muscle Group XIII, the
semimembranous, semitendinosus and the biceps femoris. The
examiner commented that any nerve injury might include small
cutaneous branches of the common perineal nerve. Muscle pain
did interfere with the veteran's walking, standing, and
mostly his sleeping.
The entrance wound was an oval which measured approximately 1
inch by 1 and 1/2 inches. This was indented between 1/16 of an
inch and 1/8 of an inch. The exit wound which was
immediately lateral to that was more of a triangular or cone-
shaped wound which measured 3-1/8 inches wide by 1-1/16
inches long, and was also very slightly indented. There was
slight subcutaneous tissue loss. Any other loss of muscle
fibers would be very difficult to ascertain. There were no
adhesions or tendon damage.
The examiner commented that there had to be some subcutaneous
nerve damage as the veteran had paresthesias in the back of
his thigh. There was no bone or joint damage noted. The
veteran had markedly decreased strength in the flexion of his
knee compared to the right. The strength was rated as 1-2/4
in the left and 3-4/4 in the right. There was no muscle
herniation. The veteran had not lost his muscle function.
The left leg was much weaker than the right. There were no
joint functions affected, and the veteran had a normal range
of motion in the left hip and left knee.
A left femur x-ray was well within normal limits. The left
knee did show early arthritis which was most likely not
associated with the direct trauma to the leg. The diagnosis
was of a traumatic wound, left posterior thigh affecting the
muscle Group XIII, and early osteoarthritis of the left knee.
In June 1998, the veteran submitted color photographs of the
left leg which have been reviewed by the Board.
A VA neurology examination was conducted in November 1999.
The clinical history revealed that the veteran had been
diagnosed with Parkinson's disease about two years ago and
had been treated for that disease with Sinemet. He had a
recent magnetic resonance imaging (MRI) of his cervical spine
on April 1999, which showed a small-herniated disc at C5-C6
and also at C6-C7. He stated that he had pain in the back of
his left leg frequently. He took occasional medicine such as
Aleve for the pain. He stated that Aleve helped decrease the
discomfort in the back of his left leg.
The examination showed that the veteran was able to squat and
then stand back up with minimal effort. He was able to rise
up on the balls of his feet and rock back on the heels of
feet, getting his toes up off of the floor. His gait showed
him to have decreased arm swing on the right. He tended to
slightly favor the left leg when walking. He had a cane
present but could walk without the use of the cane. On
direct evaluation of his lower extremity strength, his right
lower extremity was 5/5 in the hamstring and quad muscles.
There was approximately 4+/5 strength of the left hamstring
muscles and 5-/6 strength of his left quad muscles on
strength evaluation.
There were two wounds on the posterior left leg just above
the popliteal fossa showing a well healed wound both medial
and laterally. Both wounds appeared to be about 3.5
centimeters in diameter. When asked about these wounds, he
stated that these were the entry and exit wounds where the
physicians had cleaned the area out when he was taken to the
hospital back in 1945. He was nontender to palpation over
the wound sites. Sensory evaluation was normal throughout to
pinprick above the posterior left popliteal area, in the area
as noted as above the wound site. Vibration was intact in
the upper and lower extremities.
It was noted that he had decreased sensation over the area
surrounding the site of the injury, which was very
circumscribed and did not follow any specific dermatome. It
was felt that this was as likely as not a branch of a
peripheral nerve, which was damaged during the injury to the
veteran. The area appeared to be well healed. He had
generally good strength. He had slightly decreased strength
of the left hamstrings when challenged directly which would
increase the chance of a fall during ambulation. The
examiner commented that the veteran, therefore, used a can to
steady himself.
It was noted that he had Parkinson's disease, which also
increased the likelihood that he would have a greater chance
of falling during ambulation. The combination of the two
problems of Parkinson's disease and injury to the left leg
significantly increased the chance of a fall during
ambulation, especially on uneven surfaces. It was as likely
as not that his left leg weakness was secondary to through-
and-through injury sustained when the safety pin of the
trailer was forced through the back of his leg. He appeared
to be stable at the time of the examination and no suggested
new workup of his left lower extremity was requested by
Neurology.
A January 2000 VA neurology addendum to the November 1999 VA
neurology examination showed that the problems that the
veteran had as a residual secondary to the trailer safety pin
that injured his left lower extremity did not appear to be
neurological in nature and an examination by an orthopedist
was recommended.
A VA orthopedic examination was conducted in February 2000.
At that time the veteran complained of left thigh weakness.
After he was discharged from service he worked as a truck
driver for the remainder of his working years until
retirement. Presently the veteran could walk one block and
then had to stop because of pain in his posterior thigh. He
walked with a cane in his right hand. He also had some low
back pain. He had no bowel or bladder trouble. He stated
that the pain was worse than it was five years ago, as far as
the burning intensity. He also had difficulty walking with
generalized weakness. The veteran used a cane and ambulated
with a wide-based gait with poor balance and a slightly
antalgic gait on his left leg. He had 4/5 strength in his
left quadriceps. The examiner commented that it was
difficult to assess his effort, as he seemed to cogwheel. He
had 5/5 strength in his hamstrings, dorsiflexors, plantar
flexors and clonus. He had negative Babinski, clonus, and
Hoffmann's.
His knee motion was 0-140 degrees. There was no varus or
valgus instability. There was no joint line tenderness.
There was no patellofemoral apprehension. He did have some
morphogenic changes suggestive of degenerative problems with
his knee. He had a well healed scar suggesting an entrance
wound at the posterior lateral aspect of his leg and an exit
wound about 6 to 7 centimeters medial to his direct posterior
thigh. There were no skin changes and no erythema. The
scars were nontender. The whole compartment was nontender,
as was the anterior compartment. His quadriceps tendons and
patellar tendons were nontender.
He had about 100-degree flexion of his hip with about 5
degrees extension, 10 degrees abduction and 5 degrees
adduction. The veteran had 5 degrees internal rotation and 5
degrees external rotation. He had negative Stendchfield
test. He was nontender over his greater trochanter. He did
have some medial distal quadriceps atrophy. His hamstring
showed symmetric size to his other side and the remainder of
his quadriceps was subjectively similar. He was able to toe
walk and heel walk without any difficulty. X-rays of the
left femur and knee showed no soft tissue abnormalities and
no bony abnormalities with the exception of the knee. There
were no lesions in the soft tissues or bone, and no
osteopenia.
The examiner commented that he could not determine whether
the veteran's knee dysfunction was due to his service
connected muscle injury. The injury was a direct injury to
the muscle in the posterior compartment. If there were a
nerve injury associated with this, it would be more sciatic
than femoral. His weakness was in the femoral distribution.
He could see no way that the injury could have injured any
part of his femoral nerve or quadriceps muscle. He showed no
signs of hamstring injury. The veteran's efforts on the
examination were questionable. He cogwheeled rather than
giving significant weakness. He may actually, by history,
have some evidence of spinal stenosis as he had difficulty
with prolonged walking. The examiner commented that he
didn't think, as the veteran had been told in the past, that
scarring was his problem. He was nontender and his
compartment was loose. He had good strength. Possible
electromyography (EMG) nerve conduction studies could help
verify whether he did have any kind of radiculopathy but that
this would be more from his back than his actual injury.
II. ANALYSIS
Initially, the Board has found that this claim is well
grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that
the claim is plausible, that is meritorious on its own or
capable of substantiation. This finding is based upon the
veteran's assertion that the residuals of a Group XIII muscle
injury to the left thigh has increased in severity.
Proscelle v. Derwinski, 2 Vet. App 629 (1992). Once it has
been determined that a claim is well grounded, VA has the
statutory duty to assist the appellant in the development of
evidence pertinent to that claim. The Board is satisfied
that all relevant evidence is of record.
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended, as far as practicably can be
determined, to compensate the average impairment of earning
capacity resulting from such disorder in civilian
occupations. 38 U.S.C.A. § 1155 (West 1991). Separate
diagnostic codes identify the various disabilities. Id.
While the regulations require review of the recorded history
of a disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the present
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
The Board notes that the Court has held that when a
diagnostic code provides for compensation based upon
limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and
4.45 (1999) must be considered, and examinations upon which
the rating decisions are based must adequately portray the
extent of functional loss due to pain "on use or due to
flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). See
also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
factors do not specifically relate to muscle or nerve
injuries independently of each other, but rather, refer to
overall factors, which must be considered when rating the
veteran's joint injury. DeLuca, 8 Vet. App. 202, 206-07
(1995).
The RO has assigned a 10 percent evaluation for residuals of
a Group XIII muscle injury to the left thigh in accordance
with the criteria set forth in the VA's Schedule for Rating
Disabilities, 38 C.F.R. Part 4, Diagnostic Codes 5313.
Diagnostic Code (DC) 5313 provides evaluations for disability
of Muscle Group XIII, the posterior thigh group, hamstring
complex of 2-joint muscles: (1) Biceps femoris; (2)
semimembranosus; and (3) semitendinosus. The functions of
these muscles are as follows: Extension of hip and flexion
of knee; outward and inward rotation of flexed knee; acting
with rectus femoris and sartorius synchronizing simultaneous
flexion of hip and knee and extension of hip and knee by
belt-over-pulley action at knee joint. This code provides a
zero percent rating for slight muscle injury, a 10 percent
rating for moderate muscle injury, a 30 percent rating for
moderately severe muscle injury, and a 40 percent rating for
severe muscle injury.
The standard range of motion for the knee is flexion to 140
degrees and extension to 0 degrees and the hip is flexion to
125 degrees and extension to 0 degrees. 38 C.F.R. § 4.71,
Plate II.
Diagnostic Code 5260 provides for limitation of flexion of
the knee. When flexion is limited to 60 degrees, a 0 percent
rating is provided; when flexion is limited to 45 degrees, 10
percent is assigned; when flexion is limited to 30 degrees,
20 percent is assigned; and when flexion is limited to 15
degrees, 30 percent is assigned.
Diagnostic Code 5261 provides for limitation of the extension
of the knee. When there is limitation of extension of the
leg to 5 degrees, a zero percent rating is assigned; when the
limitation is to 10 degrees, a 10 percent rating is
assignable; when the limitation is to 15 degrees, 20 percent
is assigned; when extension is limited to 20 degrees, 30
percent is assigned; when extension is limited to 30 degrees,
40 percent is assigned; and when it is limited to 45 degrees,
50 percent is assigned.
A through-and-through injury with muscle damage shall be
evaluated as no less than a moderate injury for each group of
muscles damaged. 38 C.F.R. § 4.56(b) (1999). Muscle injuries
in the same anatomical regions, e.g., the muscle groups of
the pelvic girdle and thigh (38 C.F.R. § 4.73, Diagnostic
Codes 5313-5318 (1999)), will not be combined, but instead,
will be evaluated for the most severely injured muscle group
and increased by one level of severity, i.e., moderate,
moderately severe, severe, to reflect the combined evaluation
for the affected muscle groups. 38 C.F.R. § 4.55(b), (e)
(1999).
The type of injury associated with a moderate muscle
disability is described as being from through-and- through or
deep penetrating wound of short track from a single bullet,
small shell or shrapnel fragment, without explosive effect of
high velocity missile, residuals of debridement, or prolonged
infection. History should include evidence of in-service
treatment for the wound, as well as a record of consistent
complaints of symptoms of muscle wounds, particularly lower
threshold of fatigue after average use, affecting the
particular functions controlled by the injured muscles.
Objective findings should include entrance and (if present)
exit scars, small or linear, indicating short track of
missile through muscle tissue. Some loss of deep fascia or
muscle substance or impairment of muscle tonus and loss of
power or lowered threshold of fatigue when compared to the
sound side. 38 C.F.R. § 4.56(d)(2) (1999).
The type of injury associated with a moderately severe muscle
disability is described as being from through-and-through or
deep penetrating wounds by small high-velocity missiles or
large low-velocity missiles, with debridement, prolonged
infection, sloughing of soft parts or intermuscular scarring.
History should include prolonged hospitalization in service
for treatment of a wound of severe grade, and consistent
complaints of symptoms of muscle wounds. Objective findings
should include relatively large entrance and (if present)
exit scars indicating the track of the missile through
important muscle groups, with moderate loss of deep fascia,
or moderate loss of muscle substance or moderate loss of
normal firm resistance as compared with the sound side. 38
C.F.R. § 4.56(d)(3) (1999).
The type of injury associated with a severe disability of
muscles includes a deep penetrating wound due to high
velocity missile, or explosive effect of high velocity
missile, or a shattering bone fracture with extensive
debridement or prolonged infection and sloughing of soft
parts, intermuscular binding and cicatrization. The history
and complaint should include cardinal signs and symptoms of
muscle disability (loss of power, weakness, lowered threshold
of fatigue, fatigue-pain, impairment of coordination, and
uncertainty of movement) worse than those shown for
moderately severe muscle injuries, and if present, evidence
of inability to keep up with work requirements. Objective
findings show extensive ragged, depressed, and adherent scars
of skin so situated as to indicate wide damage to muscle
groups in the track of the muscle. Tests of strength,
endurance, or coordination movements compared with the
corresponding muscles of the uninjured side indicated severe
impairment of function. An X-ray may show minute multiple
scattered foreign bodies. Palpation of the muscles shows
moderate or extensive loss of deep fascia or of muscle
substance, soft or flabby muscles in the wound area. 38
C.F.R. § 4.56(d)(4) (1999).
The appellant's wound to Muscle Group XIII was a through-and-
through injury. The May 1998 examination showed that the
veteran complained of muscle pain which interfered with the
veteran's walking, standing, and mostly his sleeping. The
entrance and exit scars were indented. However, there was
only slight subcutaneous tissue loss. Additionally, the exit
wound was immediately lateral to the entrance wound which is
indicative of a short track and the scars were asymptomatic.
The strength was rated as 1-2/4 in the left and 3-4/4 in the
right. However, the February 2000 examination showed that
there was 4/5 strength in the left quadriceps with 5/5
strength in the hamstrings.
Additionally, the February 2000 examination showed no
evidence of any bone injury and only slight quadriceps
atrophy was reported. Furthermore, the examiner indicated
that the veteran's weakness was in the femoral distribution
and the examiner was unable see any way that the injury could
have injured any part of his femoral nerve or quadriceps
muscle. He showed no signs of hamstring injury.
After reviewing the evidence it is the Board' judgment that
the residuals of the injury to Muscle Group XIII do not
satisfy the criteria for moderately severe impairment. The
current degree of impairment is included in the 10 percent
rating which contemplates moderate disability.
ORDER
Entitlement to an increased evaluation for the residuals of
an injury to Muscle Group XIII, the left thigh, currently
evaluated as 10 percent disabling is denied.
ROBERT P. REGAN
Member, Board of Veterans' Appeals